Kurien Jose and Others vs Assistant Commissioner of Income Tax and Others

S.P. Chaly, J.

This writ appeal is preferred by the additional writ petitioners against the judgment dated March 13, 2006 Smt. Annamma Ouseph (Decd.) (by legal representative) Vs. Assistant Commissioner of Income Tax and Another, , of the learned single judge in O.P. No. 13631 of 1999. The writ petition was originally filed by one Annamma Ouseph, who died during the pendency of the writ petition, consequent to which the appellants, her legal representatives, were impleaded as additional petitioners in the writ petition. The writ petition was filed challenging exhibit P6 order passed by the second respondent, refusing to entertain a refund application finalised by the first appellant for the assessment years 1994-95 and 1995-96 and by the impugned judgment, the learned single judge upheld the said order. Brief facts required for the disposal of the writ appeal are as stated hereunder:

The writ petitioner, namely, the late Annamma Ouseph, was the wife of one P.O. Kuriakose, who was an assessee under the Income-tax Act, 1961 (for short, "the Act"). The said P.O. Kuriakose died on June 26, 1995, and for the assessment years 1994-95 and 1995-96, the writ petitioner filed returns of income as the legal heir of the late Kuriakose before the first respondent and, accordingly, paid the tax and surcharge due as per the return amounting to Rs. 2,63,060 and Rs. 80,192, respectively. The first respondent completed the assessment under section 143(1)(a) of the Act as per exhibits P1 and P1(a). It was the contention of the writ petitioner that she had adopted wrong figures for calculating part of the additional compensation and part of the interest based on the statement obtained from the Land Acquisition Officer. Since there were family disputes, certain documents were not available with the writ petitioner, when she filed the original returns.

It was the further contention of the writ petitioner that the State Government had acquired an extent of about 257 cents of agricultural land in Survey No. 611/2, 611/3-2 of Lalam Village of Meenachil Taluk. Advance possession of the land after the requisite proceedings were taken on February 10, 1987, and an award was passed by the Deputy Collector, Kottayam, awarding a compensation of Rs. 10,56,672.33. Out of the aforesaid amount, an amount of Rs. 6,76,271 was received on January 15, 1989, and the balance of Rs. 3,80,401 was received on November 2, 1989. Dissatisfied with the compensation, the late P.O. Kuriakose sought reference before the Additional Sub Court, Kottayam, and the reference court had awarded an amount of Rs. 20,51,248 inclusive of all the benefits provided under the Land Acquisition Act. Again, out of the said amount, Rs. 18,56,270 was received on April 8, 1993, and the balance of Rs. 1,94,978 on August 11, 1994. Thus, altogether, including the amount awarded by the original authority, the late Kuriakose received an amount of Rs. 51,73,364. But in view of the disbursal of Rs. 10,56,672.33 to the writ petitioner during the assessment years 1994-95 and 1995-96, the writ petitioner had filed returns and thereupon the first respondent had completed the proceedings under section 143(1)(a) as per his intimation dated March 20,1997. Thus, the writ petitioner, namely, Annamma Ouseph, had only paid tax due on the compensation awarded by the Land Acquisition Officer, and no other amount was received either by the late P.O. Kuriakose or Annamma Ouseph at that point of time to file the returns for the whole amount received under the land acquisition proceedings.

The writ petitioner''s husband, the late P.O. Kuriakose, had executed a will dated April 23, 1988, by which the first appellant herein was authorised to receive compensation in respect of the land acquisition proceedings. He was an assessee of income-tax under the Mattanchery Circle, Ernakulam District. The first appellant later collected information in respect of the above proceedings and filed declarations under the Voluntary Disclosure of Income (VDI) Scheme and paid tax due for the entire amount of compensation received under the said Scheme, on March 31, 1988, which included the amount of compensation to which the late Annamma Ouseph had filed returns for the assessment years 1994-95 and 1995-96 and paid tax.

It was the further case of the writ petitioner that in the said view of the matter, she had preferred revision petitions under section 264 of the Act, requesting the second respondent to revise the intimation tinder section 143(1)(a) dated March 20, 1997, for the assessment years 1994-95 and 1995-96 and for a direction to refund the amount of Rs. 2,63,060 and Rs. 80,192 paid by her. However, the second respondent rejected the same by exhibit P6 impugned order dated September 9, 1998, and, thus, aggrieved by the said order, the writ petition was preferred by the late Annamma Ouseph.

Even though the respondents have not filed any counter-affidavit in the writ petition, a counter-affidavit was filed by the second respondent in the writ appeal basically contending that the petitioner was not entitled to get the reliefs sought for since the proceedings under section 143(1)(a) were concluded and, therefore, there are no circumstances available in order to open the same and consider the request made by the petitioner for cancellation of the intimation and to refund the amount paid for the aforesaid assessment years. It was also contended that the option accepted by the first appellant under the VDI Scheme cannot be reopened under any circumstances since sections 69 and 70 of the Finance Act, 1997, prohibited refund of any amount paid under the said Scheme.

During the pendency of the writ petition, the petitioner, namely, Annamma Ouseph died and, consequently, the appellants herein were impleaded as additional petitioners as per the order dated March 6, 2006, in I.A. No. 2198 of 2006.

Heard the learned counsel for the appellants and the learned senior standing counsel appearing for the respondents, Income-tax Department.

The learned single judge, after evaluating the facts and circumstances of the case and the law involved in the subject matter, had arrived at a finding that the appellants are not entitled to get any reliefs sought for since the proceedings pursuant to the returns filed were completed under section 143(1)(a) of the Act by the first respondent. So also the learned single judge held that since the first appellant has paid the amount under the VDI Scheme, it cannot be reopened in view of the prohibition contained under sections 69 and 70 of the Finance Act, 1997, and, therefore, the petitioners were not entitled to get the reliefs sought for.

We have gone through the pleadings in the writ petition, writ appeal and attendant documents and the counter-affidavit filed by the second respondent.

Learned counsel for the appellants contended that tax paid by the late Annamma Ouseph for the assessment years 1994-95 and 1995-96 in view of the tax paid by the first appellant, under the VDI Scheme, covering the said-period also, was liable, to be refunded since it amounted to double taxation against the aforesaid assessment years, which was not contemplated under the income-tax laws. According to us, so far as tax paid by late Annamma Ouseph is concerned, it was on the basis of the, compensation amount received by her under the land acquisition proceedings after the death of the original awardee which she was liable to pay for the aforesaid assessment years. Therefore, so far as the payment of tax for the said assessment years are concerned, the same were in accordance with law and did not require any correction in terms of section 143(1)(a) of the Act. We also appreciated the fact that subsequent payment of the tax amount under the VDI Scheme by the first appellant, S/o. the late Annamma Ouseph was as per the scheme launched by the Income-tax Department and at that point of time, if he was cautious enough, he should have restricted the payment to the balance amount after deducting the payment made by the late Annamma Ouseph for the assessment years 1994-95 and 1995-96. Circumstances being so, the late Annamma Ouseph could not have sought reopening of the proceedings finalised under section 143(1)(a) of the Income-tax Act, invoking section 264 of the Act. We are of the considered opinion that there is no illegality or legal infirmity in the judgment warranting our interference.

The appeal fails and accordingly same is dismissed.